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South Eastern Circuit Response to the Consultation

Entitled “Reforming the Courts’ Approach to McKenzie Friends” (February 2016)

Introduction

1. The South Eastern Circuit represents over 2,000 employed and self-employed members of

the Bar with experience in all areas of practice and across England and Wales. It is the

largest Circuit in the country. The high international reputation enjoyed by our justice

system owes a great deal to the professionalism, commitment and ethical standards of our

practitioners.

2. This is the response on behalf of the South Eastern Circuit (“the SEC”) to the consultation

entitled “Reforming the Courts’ Approach to McKenzie Friends”, dated February 2016

and issued by a working group chaired by Asplin J. on behalf of the Lord Chief Justice

and the Judicial Executive Board.

3. The SEC is wary of the adoption of terminology such as “professional McKenzie friends”,

since the same may be understood to suggest that such people are legally-qualified and/or

generally act to a certain standard or in accordance with a particular set of obligations.

McKenzie friends are (largely) legally-unqualified, (all) unregulated and not required to

abide by a code of practice. This response document uses the phrase “paid McKenzie

friends”.

The issues

4. It is important to identify the issues. Five questions can be posited.

(a) Should McKenzie friends be permitted at all?

(b) If yes to (a), should a court have to give permission for a litigant to have a

McKenzie friend?

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(c) If yes to (b), with what information should a court be provided in order to

determine whether to give permission?

(d) Is there a requirement for a (relatively short but) rigorous examination of an

application by a McKenzie friend for temporary rights of audience?

(e) Should the court system permit a McKenzie friend to receive payment or

remuneration in return for ‘acting’ in that capacity?

5. The SEC answers:

(a) yes;

(b) yes;

(c) a minimum, non-onerous amount of information, such as a curriculum vitae or

a short note (possibly on a standard form made available by the court)

explaining how the proposed McKenzie friend knows the litigant and what

support he or she proposes to provide during the hearing (such as ‘moral

support’ or ‘assistance with organising papers’, etc.), in order that the court may

satisfy itself that the person is a suitable and appropriate person to be present in

that capacity;

(d) yes, and such rights should not routinely be granted; and

(e) no.

6. Three questions – those of (i) remuneration; (ii) granting rights of audience to McKenzie

friends; and (iii) whether and how a court ensures that suitable and appropriate persons are

acting as McKenzie friends – are separate and care should be taken not to conflate them.

McKenzie friends as a concept

7. The SEC strongly supports the principle that a litigant-in-person may avail him- or herself

of the reasonable assistance of a friend or acquaintance when he or she is in court. Access

to justice includes the ability fully to engage with proceedings, and a party’s ability to

engage may be assisted or augmented by the practical help of another person. That help

may be simple moral support or a more involved role such as marshalling documents or

reminding the litigant of points he or she had planned to make.

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The remit of McKenzie friends

8. It has been said that the role of a McKenzie friend is “to sit and advise and quietly to offer

help”.1 An old authority states that “[a]ny person, whether he be a professional man or not,

may attend as a friend of either party, may take notes, may quietly make suggestions, and

give advice.”2 “Provided that [a] McKenzie friend acts with restraint, he is often a useful

assistant to the conduct of litigation.”3 The SEC agrees.

9. The activities set out under paragraph 3 of the Practice Guidance seem accurately to set

out the appropriate remit of a McKenzie friend: they “may: i) provide moral support for

litigants; ii) take notes; iii) help with case papers; [iv]) quietly give advice on any aspect

of the conduct of the case. ... [They] may not: i) act as the litigants’ agent in relation to the

proceedings; ii) manage litigants’ cases outside court, for example by signing court

documents; or iii) address the court, make oral submissions or examine witnesses.”

10. The SEC sees no reason to expand or reduce that remit. As it is currently expressed in the

Practice Guidance, the remit furthers the proper aim of permitting McKenzie friends: to

allow litigants to have practical or moral assistance or support when appearing in court

unrepresented.

11. In the majority of cases, there is no role for a McKenzie friend outside court. That person

is not the litigant’s agent or legal advisor and should not be acting (or purporting to act) or

agreeing matters on the litigant’s behalf. The McKenzie friend is unable to give legal

advice. The litigant remains the party to the proceedings and remains the only person with

whom the other parties may legitimately negotiate. If the McKenzie friend purports to

agree something with another party, what position does the litigant find him- or herself in?

Either the McKenzie friend has no authority to act on the litigant’s behalf (in which case

the exercise is useless and wastes time) or the litigant finds him- or herself bound by the

McKenzie friend’s agreement but, in the case of a bad agreement, has no regulatory

recourse against the McKenzie friend and, in any event, the McKenzie friend is uninsured.

12. It may be possible for a litigant in person to be warned of the issues set out in the preceding

paragraph by way of an information sheet or the inclusion of particular wording on a

1 Re H (Chambers Proceedings: McKenzie Friend) [1997] 2 F.L.R. 423, per Ward L.J. It is taken that “advise” in

this context means informally to advise and not to offer legal advice. 2 Collier v. Hicks (1831) 2 B. & Ad. 663. 3 Re M (Contact: Family Assistance: McKenzie Friend) [1999] 1 F.L.R. 75, per Ward L.J.

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standard form to be completed in all cases by a litigant who seeks the court’s permission

to be accompanied by a McKenzie friend.

Ensuring that McKenzie friends are suitable and appropriate persons

13. The SEC has no objection in principle to a suitable and appropriate person accompanying

a litigant into court for moral and/or practical support and/or to provide quiet assistance to

the litigant. Indeed, the SEC supports the ability of a litigant, in an appropriate case, to

have the assistance of such a person if that is likely to assist him or her in being able more

cogently to present his or her case.

14. In the majority of cases in which a McKenzie friend attends with a litigant, that McKenzie

friend is an acquaintance, friend, colleague or supporter of the litigant. In such cases there

will rarely be any challenge to the McKenzie friend providing quiet assistance to the

litigant. Objection is more likely to be taken when a litigant attends with a McKenzie friend

who is in receipt of remuneration for that attendance, because in such circumstances it is

less likely that that McKenzie friend is a prior acquaintance of the litigant. Allowing

unqualified persons to assist a litigant for reward formed no part of the original rationale

for permitting their attendance at court hearings.

15. The SEC has received anecdotal evidence that parties are reluctant to raise the suitability

or appropriateness of a litigant being accompanied by a McKenzie friend because, on

occasion, they have been chastised by the court for (apparently) hindering the fast progress

of court business or unnecessarily standing on strict procedure to the (apparent) detriment

of an unrepresented litigant. Courts should be encouraged, as a matter of course:

(a) to consider whether to give permission for a McKenzie friend to sit with a

litigant;

(b) to be informed if that McKenzie friend has received, or has made an agreement

under which he or she will receive, payment or remuneration for his or her

attendance as a McKenzie friend; and

(c) to insist upon an application, and to consider appropriately any such application,

in the event that a McKenzie friend seeks a temporary right of audience.

It is accepted that adherence to such procedure may increase the amount of time a court

must spend on a case, but that time can be reduced with the use of the standard form notices

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proposed in the consultation. Further, in a case in which only stage (a) above (giving

permission for a McKenzie friend to sit with a litigant to provide quiet assistance) must be

considered, it is unlikely that much or any objection will be taken by any reasonable

opposing party.4

McKenzie friends as advocates

16. There is a significant difference between, on the one hand, providing moral support and/or

practical help and, on the other hand, acting in the capacity of a representative advocate.

The role of McKenzie friend lends itself to the former and not to the latter.

17. Historically, and presently, rights of audience have generally been limited to professional

lawyers. There are good reasons for that. Professional lawyers, whether barristers or

solicitors, are qualified advocates who are required to hold insurance and who are obliged

to fulfil their professional obligations. Those obligations include requirements not to

mislead the court, to act with honesty and integrity, to hold appropriate insurance cover

and to abide by relevant rules of court. McKenzie friends are, for the most part, not

qualified lawyers. They have no obligation to hold insurance. They are not regulated and

they have no obligation to abide by any code of conduct. They have no duty to the court.

These facts are not (especially) problematic when a McKenzie friend attends a hearing

simply to give practical or moral assistance, because he or she does not advance a case or

speak on behalf of a party.

18. The SEC accepts that there are circumstances in which a person who does not otherwise

have rights of audience ought to be granted them, on a limited basis, for a specific good

reason. The law should allow for such rare circumstances by permitting judges to grant a

right of audience to a person who would not otherwise have them. It is not impossible to

imagine circumstances in which it may be desirable and appropriate to grant such rights to

a McKenzie friend.5 Those circumstances are, however, limited; and in practice it should

be rare for a judge to take that step. Any right of audience so granted should be limited to

the hearing at which it was granted.

4 Further force is given to this likelihood in light of the position, under current case law, that “the presumption in

favour of the litigant being allowed the assistance of a McKenzie friend is a strong one”: Re O’Connell et al.

[2005] EWCA Civ 759 at [67], per Wall L.J. 5 One example is a company director who attends a hearing in an action against his company where that company

does not have legal representation.

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19. Anecdotal evidence, however, suggests that where a McKenzie friend requests rights of

audience for a hearing, he or she is routinely permitted to address the court on behalf of

his or her ‘client’. Busy District Judges appear not to have the time (or, in some cases, the

inclination) during a busy list to go through the steps required by the Legal Services Act

2007 and those set out in the Practice Guidance. Counsel (often junior counsel) who raise

the question of whether the McKenzie friend ought so readily to be granted a right of

audience are, anecdotally, seen as being unhelpful and unnecessarily standing on

procedure.

20. It may be the case that the status of the Practice Guidance as guidance, rather than a practice

direction, gives the impression that less weight should be given to considering the issues

therein. The formulation and implementation of rules of court will prevent such a risk.

Paid McKenzie friends

21. There is a concern that some paid McKenzie friends present or market themselves as a

cheaper alternative to qualified lawyers. It is possible to see how such an offer is attractive

to a litigant in person. From surveying the websites of paid McKenzie friends, however, it

appears that their fees approximate to those which a litigant might expect to pay junior

counsel for the same work. With junior counsel, perhaps on a direct public access basis, a

litigant would have the benefits set out above (a qualified, regulated, insured professional

representative). With a paid McKenzie friend, the litigant is paying the same, or more, and

receiving less.

22. As a result, the growth of the use of paid McKenzie friends appears to be a false economy

as far as litigants are concerned. Further, it reduces consumer protections offered by the

legal profession, disturbs the market and undermines proper regulation.

23. There have been reports in the legal press which suggest that legal professionals are

offering their services as paid McKenzie friends, apparently with the intention of

maintaining their work profile (and the attendant income) without the burdens of

regulation or being required to carry insurance.6 Such conduct does nothing to ensure that

6 C. Smith, “Solicitors becoming McKenzie friends to avoid regulatory costs, CMA told”, The Law Society

Gazette, 26th April 2016. Available at http://www.lawgazette.co.uk/practice/solicitors-becoming-mckenzie-

friends-to-avoid-regulatory-costs-cma-told/5054974.article (accessed 28th April 2016). There is some suggestion

that the Law Society may be encouraging such an approach: “Unbundling Civil Legal Services”, The Law Society,

4th April 2016, available at http://www.lawsociety.org.uk/support-services/advice/practice-notes/unbundling-

civil-legal-services/ (accessed 17th May 2016).

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litigants are provided with a proper service and proper protections against the negligence

of their agents. If the reports are accurate, they are further reason why the courts should

not routinely permit unregulated, uninsured persons to act as legal representatives.

24. Further, there is the risk that by permitting (passively or explicitly) McKenzie friends to

be remunerated the justice system is seen to condone or sanction unqualified, unregulated

and uninsured people as appropriate individuals to be conducting reserved legal activities.

25. There is a wealth of information available online which evidences attempts by groups of

paid McKenzie friends to allay some of the concerns set out above. In particular, there

appear to be attempts to ‘self-regulate’.7 Such ‘regulation’ is nothing of the sort because

there is no independent oversight and no effective sanction. Expulsion from an unregulated

private organisation or loss of membership privileges of a website does not amount to any

meaningful sanction and does not prohibit the expelled person from continuing to attend

hearings as a McKenzie friend.

Answers to specific questions in the consultation

Question 1: Do you agree that the term ‘McKenzie Friend’ should be replaced by a term

that is more readily understandable and properly reflects the role in question? Please

give your reasons for your answer.

There is no objection in principle. To a layperson, “McKenzie friend” is not a term which has

any particular meaning, and the role could be clarified by the use of a more readily-

understandable term. The opportunity could also be used to clarify the remit of such a person.

Question 2: Do you agree that the term ‘court supporter’ should replace McKenzie

Friend? If not, what other term would you suggest? Please give your reasons for your

answer.

As noted in the answer to question 1, there may be merit in replacing the term “McKenzie

friend” with a term which means something to laypeople. The SEC is not sure that “court

7 See, for example, http://www.mckenziefriends.directory/service%20standards.html (accessed 27th April 2016).

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supporter” is the best replacement, because the use of the word “court” may be taken to suggest

that the court is sanctioning the attendance and assistance of the particular person involved.

Further or alternatively, it may suggest that the person has been provided by the court (and he

or she is, in fact, some form of court official).

Another option, which the SEC prefers and suggests, is “friend in court”, which avoids any

impression of court sanction or provision, and has the benefit of describing accurately the role

of such a person.

Question 3: Do you agree that the present Practice Guidance should be replaced with

rules of court? Please give your reasons for your answer. Please also give any specific

comments on the draft rules set out at Annex A.

Yes. Please see above in respect of the SEC’s concerns that courts appear routinely to be

permitting McKenzie friends to exercise rights of audience without careful/structured

consideration of how appropriate it is to give such permission.

As set out in the answers to questions 7 and 8, the SEC considers that it would be of greatest

assistance for new rules to be drafted in terms which are understandable to laypersons. That

will hopefully reduce the likelihood of a requirement for a freestanding guide. The draft rules

appear largely to be understandable (in that sense), although the Civil Procedure Rules

Committee may wish to consult on the terminology used in advance of adopting any draft.

Comments upon particular draft rules are set out below.

Draft rule 3.22(7) should be re-drafted to include the word ‘must’,8 to emphasise that there is

no discretion and the court will not permit a McKenzie friend to sit with or assist a litigant

where that McKenzie friend has received, or has made an agreement under which he or she

will receive, payment or remuneration for his or her attendance as a McKenzie friend. The SEC

prefers that formulation of wording because draft rule 3.22(7) applies only where the McKenzie

friend is being remunerated.

The SEC queries whether there should be a presumption, under draft rule 3.22(9), that the

McKenzie friend may assist the litigant unless and until the court decides that such assistance

8 It is noted that draft rule 3.23(6) uses the word ‘must’. ‘Must’ imposes a requirement; ‘will’ may appear to be

guidance or to indicate a usual approach.

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may not be given. For the reasons set out in this response above, the SEC considers that the

better approach is for the court positively to give permission in every case. As noted, in the

majority of cases that is unlikely to be a contentious issue. As such, the SEC supports the

adoption of the procedure set out in draft rule 3.22(2) and (3) in all cases. As set out in this

response above, the SEC considers that the court should be supplied with sufficient information

to establish: (i) how the McKenzie friend knows the litigant; (ii) that the McKenzie friend is a

suitable and appropriate person; and (iii) that the McKenzie friend has not received, and has

not made an agreement under which he or she will receive, payment or remuneration for his or

her attendance as a McKenzie friend.

Draft rule 3.22(11)(a) is sensible and avoids the requirement for an additional order in every

case.

The SEC queries whether draft rule 3.22(12) is required, given that it reflects the current law,

although there is no objection to its inclusion in order to avoid doubt.

Draft rule 32.22(13) is dangerous and should not be adopted. A McKenzie friend is a person

present to provide a litigant with moral and/or practical support. In the majority of cases a

McKenzie friend does not provide any assistance with litigation and it is not appropriate for

such a McKenzie friend to be saddled with the responsibilities of a litigator. Further, it is

unlikely that a McKenzie friend will be aware of the detail or extent of the duties imposed by

rule 32.22(13), which is likely to make it difficult to enforce those duties without a (justified)

complaint by the McKenzie friend that he or she could not comply with a duty about which he

or she did not know. Yet further, it is likely to be unfair in principle to impose the duties of a

solicitor upon a person who is not, and has not trained to be, a solicitor. That will be especially

true where the McKenzie friend is doing no more than marshalling papers or quietly reminding

a litigant of points that litigant intended to make. A solicitor’s duties are extensive. They

include, for example, notifying the court as to issues regarding capacity: a requirement which

would not be appropriate to expect of a person merely providing quiet assistance in court.

The SEC supports the adoption of a specified procedure by which a McKenzie friend may

apply for a right of audience and/or the right to conduct litigation. That will avoid the need for

a court to have regard to the primary legislation and it will also mean that the procedure is

readily-available (in the White Book).

The SEC supports the approach in draft rule 3.23(4). It has no particular observations to make

about the remainder of draft rule 3.23.

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As to the proposed amendment to Practice Direction 3C, the SEC notes in respect of paragraph

1(b)(ii) that draft rules 3.22 and 3.23 do not establish a bar on a McKenzie friend acting for

remuneration. Rather, draft rule 3.22(7) provides that permission to attend as a McKenzie

friend will be withdrawn if remuneration is involved. That is not the same as a ban upon it

happening in the first place. It may be necessary, therefore, in order for proposed paragraph

1(b)(ii) to operate, for the draft rules explicitly to impose a ban upon McKenzie friends

attending court with a litigant where remuneration is involved.9

Further, a civil restraint order prohibits the issuing of claims and/or applications. The litigant,

not his or McKenzie friend, issues a claim or an application. Therefore if the civil restraint

order regime is to be extended to McKenzie friends, there will have to be an amendment to rule

3.11 and Practice Direction 3C will also have to be amended to include a prohibition on

attending hearings as a McKenzie friend.

The SEC, or representatives from the SEC, would be willing to provide more detailed

comments upon the draft rules if that were requested.

Question 4: Should different approaches to the grant of a right of audience apply in family

proceedings and civil proceedings? Please give your reasons for your answer and outline

the test that you believe should be applicable. Please also give any specific comments on

the draft rules.

The test should be the same (for consistency, which aids understanding by laypersons), but in

determining such an application a family court will necessarily have to take into account

different or additional factors. Perhaps the most obvious additional factor will be that family

proceedings are generally held in private and documents in those proceedings are confidential

to them. It is likely that the question of whether a McKenzie friend is a suitable and appropriate

person will have been considered at an earlier stage, namely when the court determined whether

it was appropriate for him or her to attend the hearing.

9 As above, the SEC suggests that the rules use language in the form of “has received, or has made an agreement

under which he or she will receive, payment or remuneration for his or her attendance as a McKenzie friend”.

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Question 5: Do you agree that a standard form notice, signed and verified by both the

LiP and McKenzie Friend, should be used to ensure that sufficient information is given

to the court regarding a McKenzie Friend? Please give your reasons for your answer.

Yes. It will ensure three things. First: there will be a ‘paper trail’ evidencing who was present,

when and for what purpose. Secondly: it will ensure that the litigant must take an active step

in recommending/requesting the assistance of a McKenzie friend, which will put the onus on

the litigant rather than permitting a ‘regular’ McKenzie friend to take over the process. Thirdly:

it will streamline the process, ensuring that the relevant information is before the judge at the

outset of the hearing; hopefully that will reduce the length of any investigation into (i) the

suitability of a proposed McKenzie friend and (ii) whether it is appropriate to grant that person

a right of audience and, in turn, that will cause courts to be more willing properly to consider

the correct test in the rules regarding granting temporary rights of audience.

Further, in practice, the completion of a notice will permit the other litigant, or his or her legal

representative, to take a view before the commencement of the hearing on whether he or she

will challenge the suitability of a proposed McKenzie friend. It is hoped, particularly if paid

McKenzie friends are prohibited, that that will result in fewer challenges and less court time

being taken up on such matters.

Question 6: Do you agree that such a notice should contain a Code of Conduct for

McKenzie Friends, which the McKenzie Friend should verify that they understand and

agree to abide by? Please give your reasons for your answer.

The SEC is wary of the introduction of a code of conduct. Although superficially it may appear

to be a step taken in order to ensure that McKenzie friends understand their responsibilities,

such a code would have no legal force. Further, an unintended consequence may be that

McKenzie friends will appear to be regulated. Even with a code of conduct there will be no

official regulation. Unscrupulous persons acting as McKenzie friends may point to a code of

conduct to give the misleading impression that they are the subject of official oversight akin to

that imposed by the Bar Standards Board or the Solicitors Regulation Authority.

If the code of conduct were, in reality, simply a restatement of the present obligations upon any

person who attends a court hearing, it may have some merit (if it were called something other

than a ‘code of conduct’). If nothing else, by signing it a McKenzie friend would confirm that

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he or she understands what is expected of him or her (to give the court and other parties

confidence that he or she is a suitable person to sit in court with the litigant) and also permits

comeback should that McKenzie friend act in an inappropriate manner. Sanctions are available

pursuant to the usual powers of the court, but delineating what is expected of a McKenzie friend

(and what is likely to happen if that McKenzie friend fails to fulfil those expectations) will

ensure that there is no complaint, by the litigant or his or her McKenzie friend, that there was

inadequate warning or insufficient understanding of the consequences.

It should be made clear that such a code of conduct does not constitute regulation of McKenzie

friends.

Question 7: Irrespective of whether the Practice Guidance (2010) is to be revised or

replaced by rules of court, do you agree that a Plain Language Guide for LIPs and

McKenzie Friends be produced? Please give your reasons for your answer.

The concern about a plain language guide is that it stands alongside the rules. It would be far

better if the new rules themselves were drafted in a readily-understandable way – then a litigant

in person could be given a copy of the relevant rules on arrival at court and refer to them if

necessary. The potential problem with a separate/freestanding document is that any

inconsistencies, whether they are substantive or apparent, are likely to confuse a litigant and

give rise to disputes. If the guide apparently permits something, because it is written in broader

or looser language, which the rules do not, that is not likely to assist in the smooth

administration of justice.

The SEC considers that a preferable course would be to produce rules – which are perhaps

drafted in ‘less legal’ language than the other parts of the relevant Procedure Rules – to which

a litigant in person may be referred and which the court may apply.

Question 8: If a Plain Language Guide is produced, do you agree that a non-judicial body

with expertise in drafting such Guides should produce it? Please give your reasons for

your answer.

The SEC agrees that, if a document is to be produced, such a body should be involved in the

process of creating it, but it should not produce it. The document should be produced (in the

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sense of creating its substance) by a legal entity, such as a working party comprising

representatives from the judiciary and the legal profession, as such an entity will have first-

hand knowledge of the procedures, rules, law, etc., as well as the day-to-day practical

considerations, which are applicable. A body with expertise in drafting plain language guides

should then be invited to review the draft of the document to ensure that it is written in

understandable language and presented in an accessible format. In other words, the substance

should come from the legal profession (which has expertise in the issues involved) and the form

should be informed by a body with expertise in presenting specialist information to a general

audience.

Should the involvement of such a body be required, the SEC suggests the Advocacy Training

Council as a candidate. The Council has considerable experience in simplifying legal terms

and concepts, developed as part of its work in producing toolkits to assist barristers in dealing

with (for example) vulnerable witnesses.

As noted above in the answer to question 7, a plain language guide would be (presumably)

unnecessary if the new rules were written sufficiently simply.

Question 9: Do you agree that codified rules should contain a prohibition on fee-recovery,

either by way of disbursement or other form of remuneration? Please give your reasons

for your answer.

Yes. The rules should go further. They should not simply prohibit a litigant in person to recover

any fee he or she has paid to a McKenzie friend (and neither the Civil Procedure Rules nor the

Family Procedure Rules appear currently to allow for that in any event). The rules should

prohibit a person from acting as a McKenzie friend if he or she has received, or has made an

agreement under which he or she will receive, payment or remuneration for the ‘service’ of so

acting. The rule can be enforced by including in the standard form notice (in questions 5 and 6

above) a requirement that a proposed McKenzie friend declares that he or she has not received,

and has made no agreement under which he or she will receive, such payment or remuneration

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Question 10: Are there any other points arising from this consultation on that you would

like to put forward for consideration? Please give your reasons for your answer.

There are no further points. The SEC’s position is set out above.

The South Eastern Circuit

June 2016